Re Weaver; Trumble v Animal Welfare League of Victoria

[1963] VR 257

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(Judgment by: Hudson J)

Re Weaver
Between: Trumble
And: Animal Welfare League of Victoria

Court:

Judge:
Hudson J

Subject References:
Will
Testamentary dispositions
Charitable trust
Educational purposes
Perpetuity
Annual income given in perpetuity
Whether as immediate gift of corpus
Contrary intention
Animal welfare
Fourth head of definition of charity
Public benefit

Hearing date: 11, 14, 15 May 1962
Judgment date: 1 June 1962

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Judgment by:
Hudson J

Originating summons for the determination of questions which have arisen as to the validity and effect of certain dispositions contained in the will of Walter Theo Weaver deceased (hereinafter referred to as the testator). The plaintiff is the executor to whom probate of the will was granted and the defendants are the Animal Welfare League of Victoria, a beneficiary named in the will; the Attorney-General of the State of Victoria; Walter Vivian Martin, who is a nephew of the testator and the tenant for life of his residuary estate; and Ethel Amelia Martin the testator's sole surviving sister who is sued personally and as representing all the next of kin of the testator other than his said nephew.

The testator died on 21 May 1960 leaving a will which bears date 30 June 1957. By his will, which appears to have been drawn by himself, the testator appointed executors and trustees and directed that all his estate real and personal should be administered by his trustees in manner thereunder set out. After bequests of certain pecuniary legacies and items of personal property to relatives and friends the following provision appears:

"Upon trust upon payment of the above bequests and all necessary outgoings I leave 2000 pounds Two thousand pounds and to pay and apply the net income from such amount yearly to the Walter Theo Weaver Bursary Trust at the State School Tewantin Queensland for the use and benefit of that schoolchild whose name is entitled to be inserted or I should say inscribed on the Walter Theo Weaver Scholarship Shield in any one year:".

Question 1 in the summons raises the question whether this is a valid charitable gift and questions 2 and 3 relate to the manner of the application thereof if valid.

The will of the testator then proceeds to leave the balance of his estate real and personal in trust for the defendant, Walter Vivian Martin, for his life and directs that upon his death his trustees shall convert his estate into cash with the exception of certain paintings, furniture and effects which are to be divided between the surviving children of his sister the defendant, Ethel Amelia Martin.

The remaining provisions of the will which follow are all material to the other questions raised in the summons and it is convenient to set them out as the testator wrote them. They are: "In trust I leave 3000 pounds Three thousand pounds and pay and apply the nett income yearly to the State School of Tewantin Queenslands Library such income yearly to be spent in purchasing books and necessary materials such fund shall be in the name of my late wife Vivian Genevieve Weaver. In trust I leave the sum of 5000 pounds Five thousand pounds to the Animal Welfare League of Victoria who shall receive the interest from such amount yearly. The balance of my Estate I leave in trust to go to the Bursary Fund, The Walter Theo Weaver Scholarship Shield and when this bequest is added to the 2000 pounds Two Thousand pounds previously allotted the interest from both bequests shall be used exclusively in furthering the education and studies of the winner each year of such Bursary. Should the winner he or she decide to study no further then the winner he or she shall receive 100 pounds One hundred pounds cash and the balance of interest that year from the Bursary Fund shall revert back to such fund".

Questions 4, 5 and 6 in the summons relate to the validity of the gift of 3000 pounds to the school library and the manner of the application thereof if valid.

Questions 7 and 8 raise questions as to the nature and validity of the gift of 5000 pounds in favour of the Animal Welfare League of Victoria.

Questions 9, 10 and 11 relate to the validity of the gift of the balance of testator's residuary estate and the manner of the application thereof if valid.

If any of the dispositions referred to is invalid and cannot take effect then there is an intestacy and the testator's next of kin would of course take.

The testator died leaving a substantial estate. After payment of his debts and liabilities and probate and estate duties and making provision for legacies (other than those with which these proceedings are concerned) the residue is estimated to amount to a sum in the region of 30,000 pounds less executor's commission, administration expenses and costs.

For many years prior to his death the testator, whose home was in Melbourne, had been accustomed to spending a substantial part of his time each year--presumably the winter months--at Tewantin which is a seaside resort in Queensland and which the testator apparently found very attractive. He took a great interest in the local State school and manifested his interest in a practical way. From the evidence of letters written by or on behalf of the testator which are before the Court it appears that in or about the year 1953 and each year thereafter until his death he awarded a scholarship known as the "Walter T Weaver Scholarship" to the scholar selected from the senior form at the school by the headmaster for the time being as the one who in the latter's opinion shewed the greatest promise and would derive the greatest benefit in furthering his or her studies from the award. On some occasions the testator referred to his gift as a bursary. The amount of the award was 20 pounds each year though in the years immediately before the testator's death it seems to have been increased slightly. In addition the testator procured and provided a shield upon which the name of each year's winner was inscribed at his expense.

It also appears from the correspondence to which I have referred that there was at the school a library in which the testator shewed some interest and to which it would seem he made some contribution in his lifetime.

Having regard to the provisions of his will and the circumstances above set out, it is clear enough what the testator intended by his dispositions which are related to the State school at Tewantin. He intended that as from the date of his death the income of 2000 pounds per annum should be awarded to the senior scholar selected each year by the headmaster of the school as the one who shewed the greatest promise and would derive the greatest benefit from further education. He intended that after the death of his nephew, the life tenant of his residuary estate, the balance of his residuary estate remaining after provision for the gifts and legacies payable thereout, should be held in trust to apply the income thereof together with the income of the 2000 pounds, in or towards providing for the further education of the senior scholar selected each year by the headmaster as the one who shewed the greatest promise and would derive the greatest benefit from further education, subject to the proviso that if that scholar so selected as the winner of the scholarship elected not to proceed to higher education, he should receive the sum of 100 pounds out of the income, and the balance available but not expended should be retained and applied for the same purposes in subsequent years.

The testator's intention with respect to the library at the school is clear and simple. A sum of 3000 pounds is to be set aside to establish a fund in the name of the testator's late wife and the net annual income thereof is to be expended on books and other necessary materials for the library. This gift is clearly a valid charitable gift for educational purposes and counsel for the next of kin did not contend to the contrary.

But the gifts of 2000 pounds and the balance of the residue were attacked as offending the rule against perpetuities and admittedly they would be invalid unless they are charitable gifts. In my judgment, they are clearly gifts for the advancement of education and therefore valid charitable gifts. In support of the contrary view it was argued that inasmuch as the successful pupil who is awarded the scholarship during the lifetime of the life tenant is at liberty to devote the income of the 2000 pounds which he is to receive to any purposes he may choose including purposes which may not be educational it is therefore not correct to say that the gift is for educational purposes. So also the pupil who receives the award after the death of the life tenant and who, on electing not to take his education further receives the sum of 100 pounds, is at liberty to apply this sum to other than educational purposes and because it is not severable this has the effect of depriving the whole of the gift of the income of residue of any educational purpose. In my view, these arguments cannot succeed. Obviously the prospect of being awarded the scholarship and the benefits which it carries will tend to stimulate students at the school to a greater interest in their studies and result in a higher standard of education throughout the school. In my view, therefore, the award and the gifts which make it possible provide an incentive to promote education and serve directly an educational purpose even though the award may be devoted by the selected student to some other purpose. If authority be needed to support this view it is to be found in the cases of Farrer v St Catherine's College Cambridge (1873) LR 16 Eq 19, at p. 24. Re Mariette; Mariette v Governing Body of Aldenham School, [1915] 2 Ch 284; [1914-15] All ER Rep 794; Re Corbyn; Midland Bank Executor and Trustee Co Ltd v Attorney-General, [1941] CH 400, at p. 403; [1941] 2 All ER 160.

The validity of the disposition of 5000 pounds in favour of the Animal Welfare League was also attacked upon the ground that it is a perpetual gift of income for purposes which are not charitable and therefore offends the rule against perpetuities.

This attack was met by counsel for the Animal Welfare League by the following contentions:--

1.

That upon its proper construction the disposition is a gift of a capital sum of 5000 pounds or takes effect as such.

2.

That the objects of the League are charitable under the fourth head in Lord Macnaghten's definition contained in Commissioners of Income Tax v Pemsel, [1891] AC 531, at p. 583: "trusts for other purposes beneficial to the community, not falling under any of the preceding heads", namely, trusts for the relief of poverty, the advancement of religion or the advancement of education. Therefore, if contrary to the first submission the gift is a perpetual gift of income its validity is saved by reason of its charitable character.

3.

Even if it is a perpetual gift of income the objects of the league include non-charitable as well as charitable purposes the gift is saved by s131 of the Property Law Act 1958 and should be construed and take effect as though no application thereof to a non-charitable and invalid purpose were allowed. Before examining these contentions it will be convenient to refer to the constitution of the league and its objects. It was incorporated on 30 June 1941 under the Companies Act 1938 as a company limited by guarantee. The objects for which it was established as stated in CL2 of its memorandum, so far as material, are as follows:--

"(a)

To promote and improve the welfare of animals generally.

"(b)

To carry on and conduct the hospital at 24 Villiers Street, North Melbourne now carried on and conducted under the style of The Lort Smith-Lyle Hospital or any similar institution for sick animals of indigent people and for those unable to pay full veterinary fees.

"(c)

To take over and acquire whether by way of gift purchase or otherwise the assets (subject to any liability existing or charged thereon) of any body association or institution having objects in whole or in part similar to those of the League.

"(d)

To establish and/or conduct and/or subsidise in connection or conjunction with the said or similar hospital any other activities devoted to the treatment of sickness in animals or their welfare and care and to assist the same in such manner as may from time to time be determined.

(e)

To supply and make arrangements for the supply for any of the purposes aforesaid of drugs and medical and surgical accessories of all kinds.

(i)

To co-operate with any other corporation or institution having objects similar to the League in any movement or co-operative action having as its object the welfare of animals and to join in and be bound by the rules of any association having such objects."

Sub-paragraphs (f), (g), (h), (j), (k) and (1) of the objects clause are in the nature of powers to do and perform incidental acts necessary or conducive to the attainment of the objects of the league properly so called.

CL4 of the memorandum provides that the income and property of the league whencesoever derived shall be applied solely towards the promotion of the league and that no portion thereof shall be paid or transferred directly or indirectly by way of dividend bonus or otherwise howsoever by way of profit to the members of the league.

CL8 provides that upon the winding up or dissolution of the league any surplus assets shall not be paid to or distributed amongst the members of the league but shall be given or transferred to some other institution or institutions having objects similar to the objects of the league or other charitable objects or purposes.

The articles of association of the league contain provisions for, inter alia, the election of members and the election at the annual general meeting of a council in whom are vested all the powers of the league.

On behalf of the league an affidavit by the present matron and secretary was filed in which after some reference to the origin of the league its present activities are outlined. From this it appears that those activities are centred in the Lort Smith Animal Hospital which was built in 1936 and extended in 1960. This building is capable of the hospitalization of 42 dogs and 52 cats and is provided with two surgeries, an operating theatre and an X-ray unit. The services provided by the league cover veterinary treatment to all animals, the collection for treatment and/or destruction of animals and the return of the animal to its home by means of ambulance; the collection by the league's ambulance and/or taxi-trucks of injured stray animals, namely, cats and dogs. The latter are treated and remain at the hospital until cured and if advertisements for their owners elicit no response the animals are found suitable homes. Advice on treatment for animals is also given by correspondence and telephone. The league has a staff of 27 which includes veterinary surgeons and other technically trained personnel and during the year 1961 approximately 26,000 cases passed through the hospital. The league's average annual expenditure is about 37,500 pounds.

I turn now to the questions of law that were argued concerning the validity of the gift to the league. Counsel on its behalf in support of his contention that the gift amounted to an immediate gift of corpus relied upon the rule that a gift of the income of property without limitation of time is a gift of the capital where no other disposition of the capital is made: Theobald on Wills, 11th. ed., p. 400. This rule was sought to be applied in Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 375; [1952] ALR 729. A majority of the court (at p. 438) after stating that the rule was established beyond dispute decided that it was not a rule of law but a rule of construction that must yield to sufficiently definite indications of intention to the contrary. The court also (at pp. 439-40) disapproved the decision of the Full Court of Victoria in Re Wright; Westley v Melbourne Hospital, [1917] VLR 127; 28 ALR 42, in which it had been held that the rule has no application to an unlimited gift of income to a charity and said:

"In our opinion the rule is the same whether the gift of income is to an individual or to a charity consisting of a body capable of holding property. The beneficiary is entitled to the capital unless there is a clear intention expressed or implied from the will that the beneficiary is not to take more than the income".

In this case, therefore, the question to be determined is whether the testator has manifested a clear intention that the league is to enjoy only the income of the legacy. His words are:

"In trust I leave the sum of 5000 pounds Five thousands pounds to the Animal Welfare League of Victoria who shall receive the interest from such amount yearly".

In my view, the testator by the use of the words appended to the gift and particularly by the use of the word "yearly" has manifested such an intention. By way of contrast in an earlier part of his will the testator bequeathed pecuniary legacies to relatives and friends and in doing so used the form which one would naturally adopt in making an absolute gift of a capital sum and without the addition of any words relating to the income. In the case of Re Williams; Bendigo and Northern District Base Hospital v Attorney-General, [1955] VLR 65; [1955] ALR 255, Dean, J, had to determine whether a gift to a trustee "to stand possessed of the residue upon trust to pay the income arising therefrom to the Bendigo Base Hospital for ever" took effect as a gift of the corpus of the residue. He held that it did not but was a gift of the annual income thereof in perpetuity. The learned judge expressed the view that although as the High Court has held the rule of construction is not excluded in the case of charitable gifts the fact that the beneficiary is a public charitable institution may throw light on the intention of the testator. This, together with the form in which he had bequeathed pecuniary legacies, his Honour found sufficient to indicate an intention that the gift was confined to income. In the present case there is in addition the direction that the league is to receive the interest from the capital sum "yearly". The question has since arisen in the Court of Appeal in Re Levy, deceased; Barclays Pty. Ltd. v Board of Guardians and Trustees for the Relief of the Jewish Poor, [1960] 1 CH 346; [1960] 1 All ER 42. As in the High Court, the conclusion was reached that the rule is one of construction and not of law and that it applies to charitable gifts as well as to non-charitable gifts. But Lord Evershed, MR, drew attention to the different considerations which may enter into the construction of an indefinite gift of income to an individual and a similar gift to a charity. He said (at pp. 356-7):

"If, on the true construction of his will, the testator intended to give to each of the charities a share of income (and no more) in perpetuity and if he further intended that the income given to each charity was to be applied for the general purposes of the charity, then, in my judgment, the question whether the charities can call for distribution of the corpus depends upon the true interpretation of the scope and extent of the gift which the testator intended to confer. I repeat that, in my judgment, an indefinite gift of income to an individual requires that the individual be entitled to the corpus not by reason of some over riding rule of law, but because only by payment of the corpus can the individual get the full benefit and extent of the gift which, as a matter of interpretation, the testator intended. A similar conclusion does not, I think, follow in the case of an indefinite gift of income to a charity for its general purposes, and if the testator here intended his gifts to be of that character, I see no reason why his dispositions should not be effective".

In the present case the gift was for the general purposes of the league and, in my opinion, the scope and extent of the gift which the testator intended to confer was a perpetual gift of the income of the sum he named. The first argument on behalf of the league therefore fails.

It was next argued that the rule in Hancock v Watson, [1902] AC 14, which was stated by Lord Davey at p. 22, applies. The rule is:

"that if you find an absolute gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin as the case may be".

The rule was commented on and explained by Fullagar, J, in Russell v Perpetual Trustee Co. (1956) 95 CLR 389, at p. 402; [1956] ALR 952, where it is pointed out that the rule is one based on presumed intention. But clearly this rule has no application to the present gift. The provision in favour of the league does not take the form of a gift of an absolute interest with trusts imposed on it. The extent of the gift intended by the testator is to be ascertained from the whole of the language used and it is not capable of being severed in the manner necessary to attract the application of the rule. For reasons to which I have already adverted the gift from first to last is a gift of income and no more. This argument is without foundation and fails, and the league's claim that it is entitled to the corpus of the gift must be rejected.

This brings me to the second contention of the league--that its objects are charitable and the gift, though a perpetual gift of income, is a valid charitable gift. It was said that the objects of the league indicate that it exists for purposes which tend to promote humane feelings and improve public morality and so are beneficial to the public and that therefore a gift to further those objects is within the fourth head of Lord Macnaghten's classification. In National Anti-Vivisection Society v Inland Revenue Commissioners, [1948] AC 31, at p. 67; [1947] 2 All ER 217, Lord Simonds said that there is no doubt that a gift for the protection of animals in prima facie a charitable gift for the reasons stated by Swinfen Eady, LJ, in Re Wedgwood, [1915] 1 CH 113, at p. 122; [1914-15] All ER Rep 322. The reasons so stated were:

"A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race".

In this case the Court of Appeal held that a gift for the protection and benefit of animals is a gift for a general public purpose beneficial to the community and therefore a good charitable gift. In the case of Re Grove-Grady; Plowden v Lawrence, [1929] 1 CH 557; [1929] All ER Rep 158, Wedgwood's Case, supra, was distinguished by a majority of the Court of Appeal on the ground that although a trust in perpetuity for animals might be a good charitable trust if in its execution there was necessarily involved a benefit to the community, that element was lacking in the case before the court and it was therefore not a good charitable trust. Lord Hanworth MR, (at p. 571), propounded the questions that must be answered in each case:

"(1)

Is the trust for a purpose beneficial to the community?

(2)

If it satisfies that first test is it charitable?"

With regard to the first of these questions he said (at p. 572):

"The test is to be applied from evidence of the benefit to be derived by the public or a considerable section of it; though a wide divergence of opinion may exist as to the expediency, or utility, of what is accepted generally as beneficial. The Court must decide whether benefit to the community is established",

and he cited what had been said by Russell, J (as he then was), in Re Hummeltenberg, [1923] 1 CH 237, at p. 242; [1923] All ER Rep 49:

"The question whether a gift is or may be operative for the public benefit is a question to be answered by the Court by forming an opinion upon the evidence before it".

This is the view that was accepted by the House of Lords, in preference to that of Chitty, J, in Re Foveaux, [1895] 2 CH 501, as the first step towards its conclusion in the Anti-Vivisection Society's Case, [1948] AC 31 (see at p. 66), that in considering whether a gift having for its object the benefit and protection of animals was for the public benefit the detriment to medical science and research and consequently to public health must also be considered. In Grove-Grady's Case, [1929] 1 CH 557, the majority of the Court of Appeal took the view that in Wedgwood's Case, supra, the primary concern of the testatrix was the removal of cruelty to animals and that such an object must clearly be accepted as a charity. But after an analysis of the trust in the case then before it the Court came to the conclusion that it bore no resemblance to that which had been upheld in Wedgwood's Case. Russell, LJ, in his judgment (at p. 582) said:

"So far as I know there is no decision which upholds a trust in perpetuity in favour of animals upon any other grounds than this, that the execution of the trust in the manner defined by the creator of the trust must prove beneficial to mankind. I cannot help feeling that in some instances matters have been stretched in favour of charities almost to bursting point: and that a decision benevolent to one doubtful charity has too often been the basis of a subsequent decision still more benevolent in favour of another"

(It was urged by counsel for the next of kin that this was a warning which should be heeded in the present case). The learned Lord Justice (at p. 585) after describing the purposes of the trust said:

"Is that a good charitable trust within the authorities? In my opinion it is not. It is merely a trust to secure that all animals within the area shall be free from molestation or destruction by man. It is not a trust directed to ensure absence or diminution of pain or cruelty in the destruction of animal life. If this trust is carried out according to its tenor, no animal within the area may be destroyed by man no matter how necessary that destruction may be in the interests of mankind or in the interests of the other denizens of the area or in the interests of the animal itself; and no matter how painlessly such destruction may be brought about. It seems to me impossible to say that the carrying out of such a trust necessarily involves benefit to the public".

As to Re Wedgwood, supra, he said (at p. 587-8):

"It seems to me that the decision in Re Wedgwood is definitely based on the view that the object of the trust being discouragement of cruelty to lower animals that, upon the existing authorities, involved benefit to the community. The Court in Re Wedgwood was certainly not purporting to lay down any new law. It is not, in my opinion, a decision either

(1)

that every trust for the benefit of animals necessarily involves benefit to the community or

(2)

that a trust for the benefit of animals which involves no such benefit is a charitable trust.

In my opinion, the Court must determine in each case whether the trusts are such that benefit to the community must necessarily result from their execution".

In Re Moss; Hobrough v Harvey, [1949] 1 All ER 495, Romer, J, was called upon to decide whether a gift for the welfare of cats and kittens needing care and attention was a good charitable gift. He held that the gift was calculated to develop the finer side of human nature of which care for old and sick animals was a manifestation and therefore was for the benefit of mankind and charitable. In Re Ingram, [1951] VLR 424; [1951] ALR 900, Smith, J, upheld as charitable a gift of property to be held upon trust

"For the benefit of the public of Australia to preserve animals (being mammals) and birds indigenous to Australia but particularly to Victoria, and the indigenous flora that provides cover food and general conditions suitable for the life habits and preservation of such animals and birds".

In his argument challenging the validity of the gift to the league, counsel for the next of kin strongly relied upon the decision of the majority and particularly the judgment of Russell, LJ, in the Grove-Grady Case, [1929] 1 CH 557; [1929] All ER Rep 158, and invited me to distinguish or not follow Moss' Case. He pointed out that the element of public benefit was in Ingram's Case conclusively established by the terms of the gift itself and that the decision of Smith, J, proceeded upon this basis. He submitted that in the present case the objects of the league are expressed in terms that are wide enough to permit it to engage in activities that do not satisfy the tests for a charitable gift laid down in the authorities to which I have referred. The purposes of the league he contended are not necessarily for the public benefit and do not necessarily produce some benefit to mankind. He pointed to the fact that the objects of the society are not confined to the welfare of domestic animals but extend to animals generally and that steps to preserve or protect rabbits from the effects of myxomatosis would be authorized however harmful the result might be from the point of view of a considerable section of the community and he referred to and relied upon what was said by Lord Wright in the Anti-Vivisection Case, [1948] AC 31, at p. 48; [1947] 2 All ER 217. Moreover, he said "welfare" is a word of wide import and the purposes of the league are not confined to the protection of animals from cruelty or the relief of animals in need of succour. Upon a full consideration of the whole of the objects, he said, the Court should not come to the conclusion that the carrying out of the purposes of the league would be of benefit to the community either morally or materially.

I have come to the conclusion upon a consideration of the objects of the league and the other materials before me that the purposes of the league are charitable. The fact that it may devote its energies and resources to the welfare of animals of all kinds is clearly on the authorities not in itself sufficient to deprive the league of its charitable character though in certain circumstances upon proper materials it might lead the Court to the conclusion that the benefit of a gift to the public might be outweighed by some proved detriment. Nor do I think that the humane feelings of mankind will not be stirred by steps taken to promote and improve the welfare of animals unless they are sick animals in need of medical attention or some other form of succour. I have no doubt that the activities of the league are in fact devoted to this class of animal but even if consistently with its stated objects it might devote itself to promoting and improving the welfare of animals not in this condition this would not, in my view, deprive its purposes of their charitable character.

In view of my conclusion that the purposes of the league are charitable and that the gift is therefore a valid charitable gift, I am relieved of the necessity of considering the further contention made on its behalf, that if non-charitable as well as charitable objects are included in the gift, it is nevertheless saved by s131 of the Property Law Act 1958. In support of this contention I was referred to several authorities including the decision of the Privy Council in Leahy v Attorney-General [1959] AC 457; [1959] ALR 869; [1959] 2 All ER 300; and that of the High Court in the same case reported in (1958) 98 CLR 538; [1958] ALR 257. On behalf of the next of kin it was contended that the decision is not applicable particularly as to the first object of the league if the proper view is that this includes non-charitable purposes, because of the absence of some expression on the part of the testator significantly indicating a charitable intention. I am disposed to think that this contention could not be maintained and that the gift would be saved by s131 were it necessary to resort to this provision. However, it is not necessary for me to express any final view on the question and I refrain from doing so.

In view of the conclusions I have reached that all of the gifts referred to in the summons are valid charitable gifts. Questions 1, 4, 7 and 9 will be answered in the affirmative and question 8 which asks whether the league will be entitled to the corpus of the sum of 5000 pounds upon the death of the life tenant in the negative. Question 10 does not arise and is not answered.

Questions 2, 3, 5, 6 and 11 ask how the plaintiff ought to deal with the gifts for educational purposes, if they are held to be valid, and for orders concerning the preparation of a scheme or schemes for carrying into effect the trusts declared by the testator in respect of each of such gifts respectively. The answer to these questions is that these gifts should be dealt with in accordance with a scheme to be prepared and submitted to the Court for its approval. There was some controversy between the plaintiff and the Attorney-General as to who should, in the somewhat unusual circumstances, prepare the scheme, each contending that this task should be undertaken by the other. It was suggested by the plaintiff that, having regard to the fact that the persons ultimately to participate under the scheme are resident in Queensland and that for the satisfactory settlement thereof a good deal of information and local knowledge may be required from Queensland, it would be more convenient for the Attorney-General to take the necessary action and prepare the scheme. In my view, the preparation of a scheme in these circumstances is part of the administration of the trusts of the will and prima facie it should be prepared by the plaintiff as trustee.

Questions answered accordingly.